Why the “Muslim Ban 2.0” is Entirely Unconstitutional

The Free Exercise and Establishment Clause are both clauses within the First Amendment in the Constitutional Bill of Rights that pertain to the freedom of religion. The Establishment Clause proceeds the Free Exercise Clause. The Establishment Clause states that “Congress shall make no law respecting the establishment of religion”. The Free Exercise Clause states that “[Congress shall make no law…] prohibiting the free exercise thereof;” These clauses state what we refer to as the freedom of religion established in the First Amendment of the Constitution.

Donald Trump’s immigration ban, which was turned out in January as an executive order, is arguably unconstitutional due to First Amendment freedom of religion clauses. While no ruling has been handed down on the constitutionality of the ban, the 9th circuit appellate court ruled on a restraining order, essentially preventing the ban from being enforced as of yet.

Regardless of one’s views on the actions of the siting president, and regardless of how one views the interpretation of the First Amendment’s Free Exercise and Establishment Clauses, in my opinion and interpretation, Trump’s ban violates these clauses and is therefore unconstitutional.

While many would argue that constitutional freedoms do not apply to non-US citizens, and while I will contend that legally this is true, morally I believe that is a very misguided excuse to promote hate based ideals. Anyway, I would argue that while constitutional freedoms do not directly apply to non-US citizens; many court rulings based on American soldiers’ violations of rights in the middle east and in Guantanamo Bay Cuba have said that, while every constitutional freedom does not extend to non-citizens, certain freedoms and rights do apply. Freedom of religion I would contend is part of this list. Like freedom of speech, freedom of religion is a reason to seek asylum in the US as a refugee. Therefore, I contend that freedom of religion extends to all people of the world, since our laws recognize it in all contexts, no matter the legal context.

Since I have now established my basis for extending the freedom of religion to all people, I will prove why in my opinion the ban is unconstitutional:

Due to the Establishment Clause cited above, I contend the ban violates this clause because, by targeting a religion in an indirect way, the executive order is essentially establishing a state religion. By banning immigration from 6 Muslim majority countries, the government, whether intentionally or not (based on Trump’s rhetoric it is), is declaring a sentiment that Islam is somehow opposed by the government. Now I understand that this is fairly obscure. I will also contend that the ban is on countries not people in a religion. However, technicalities aside, the ban is directed to Muslims not to countries. Based on the rhetoric of Trump and his administration, his people have a strong anti-Islam stance that is bigoted and hateful. This ban comes directly out of that intent and thus has some standing regardless of how the ban is phrased. While I will state that intent is not a reason to declare an act illegal or unconstitutional, intent is a major factor in the courts to determine the validity of an act of law and therefore has certain standing. With this said, by the Trump administration directly opposing Islam, the administration and his ban give stance that Islam is not acceptable in America. His ban through intent and practice gives legal validity to his opposition to Islam. The government, by directly opposing and not accepting a religion, is establishing a state religion in its own way. By elevating and supporting all other religions over Islam and by declaring Islam and Muslims dangerous, the government establishes that a religion, i.e. Islam, is inferior to other religions and that the USA will accept a superior religion. This is directly establishing a type of religion that is permissible in the USA. This, although obscure, is establishing religion and therefore is in direct violation of the Establishment Clause in the First Amendment and thus makes the entire ban unconstitutional.

However, whether one takes this as an “in addition” or as a “conversely”, the ban also violates the Free Exercise Clause. As with my explanation above, after establishing a basis for constitutional freedoms and rights applying to non-citizens, an argument against the ban can be supported based on a violation of this clause. By restricting who is allowed to enter and become citizens of the USA based on their religion, the Trump administration is limiting the free exercise of religion in the country. This again can be supported by intent since he has stated that he wants to make a Muslim registry. As with above, there is slight validity due to his intent and because of that, his desire to require a religious group to join a registry and be monitored, he restricts not only the freedoms of the people, but he also restricts the way Muslims could practice their religion. Now in regards to his ban, he is limiting the way people can practice religion in the USA by saying that if you are Muslim you cannot enter the USA and become a citizen. This is in direct violation of the Free Exercise and thus deems the ban unconstitutional.

In regards to the two arguments I present above, I contend that the ban is unconstitutional and thus cannot be upheld or enforced. However, if these arguments do not convince you based on whatever objection one may have, direct discrimination against a group of people based on nationality is also illegal and unconstitutional due to the 14th amendment. Thus I contend that no matter one’s argument, support of this ban is misguided, bigoted, and immoral. And despite my personal views against the ban, it is by no means legal, let alone constitutional, and should be opposed simply because one must exercise their right to oppose tyranny.

Para Todos los Latinos Viviendo en los EEUU Bajo el Presidente Trump

Yo sé bien que cada uno de los latinos que están viviendo en los EEUU bajo la presidencia de Donald Trump, está padeciendo un montón de ataques de los gringos y de otros en los EEUU. Especialmente, yo quiero decir que los mexicanos están sufriendo más que otros latinos a causa del muro que construirá Donald Trump. Pero también yo quiero pedir perdón de todos los latinos que son confundidos por mexicano sólo porque tienen la piel morena.

Primeramente, quiero que todos sepan que cada latino es aceptado en los EEUU. Aunque parezca que los estadounidenses no quieran que los latinos y especialmente los mexicanos estén en el país, sin embargo yo les quiero decir que ese grupo es una minoría en los EEUU. La mayoría de las personas los ven como ciudadanos tal como cada gringo. También hay sentimientos de temor a causa del muro que Trump quiere construir. Pero también, quiero darles mi creencia de que él no podrá construirlo.

Primeramente, él no podrá ser capaz de pagar para el muro.

En seguido, no hay ninguna manera en que los ciudadanos de los EEUU participen en construir ese muro.

También, el racísmo que cada uno de los latinos afrontan por las racistas en los EEUU es completamente pátetico. La mayoría de esas personas son gringos que no se han ido de sus comunidades por un solo ratico. Ellos pasan toda la vida sin la diversidad del mundo. Todos de ellos son blancos y gringos y no tienen la educación ni la experiencia para saber que los negros o los latinos son exactamente como ellos, seres humanos.

Somos humanos. Somos hermanos. Somos todos juntos. No tengan miedo. Aunque no tengan una tarjeta verde, ustedes son tal estadounidense como yo como él que se siente enfrente de ustedes. Todos de nosotros necesitan juntarnos como latinos para combatir el racísmo y las acciones que algunas personas, incluso el presidente Trump, quizás hagan en los EEUU. No vamos a quedarnos mudos ni no vamos a aguantar la opresión ya.

The Future of the Supreme Court

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With the nomination of the new 49-year-old Supreme Court Justice, Gorsuch, one must wonder where the Supreme Court is headed in future years. If Gorsuch is confirmed, it can be expected that he will be a Justice for around 30 years, changing the balance of power in the court to 5-4, in favor of Conservatives. This presents a favorable future for Republicans; Democrats on the other hand will be quite alarmed by the potential future of the supreme court.

Obviously for Democrats this is alarming, and what’s worse is that Breyer, Kennedy and Ginsburg are over or close to over the age of 80; it’s not out of the realm of possibility that they resign or pass away under President Trump, meaning Republicans could have a presence on the court for years to come. As a historian, this greatly reminds me of the midnight justices appointed by John Adams which allowed the dying Federalist party to have influence over the government long after their party was dead. Even if the Democrats defeat either Trump or another Republican nominee, there is a potential, assuming all three at risk justices pass away or resign, for Conservatives to hold a 7-2 balance in the Supreme Court. This would have long-lasting effects on a number of precedents set by the Court recently. Cases brought forth could be about Gay Marriage, LGBT discrimination in business, Whole Woman’s Health v. Hellerstedt, United States v. Texas, and Fischer v. University of Texas are some of the biggest issues that come to mind. These cases will put issues such as abortion, affirmative action, and immigration on defense. If these deaths or resignations come to pass, these issues could be at risk and under siege for decades.

Obviously the future for Liberals in the Supreme Court seems bleak; however, here are a few things to keep in mind. Although Gorsuch is extremely conservative, he is very qualified for his position receiving degrees from Harvard, Oxford, and Columbia. He has a very consistent record of voting based on the law, not for what his party wants. He has been against executive overreach in the past and hopefully continues his record in the future if and when he is confirmed. He has also been very against using the courts to press his agenda by acting only as a judge. To quote the man himself,“when we judges don our robes, it doesn’t make us any smarter, but it does serve as a reminder of what’s expected of us: Impartiality and independence, collegiality and courage.” We can only hope that if he is confirmed he will continue these patterns and won’t be swayed by his party to giving them more power. Personally, I hope that the Senate confirms him because even if we don’t agree with him on all issues, he is extremely qualified and frankly it could be a lot worse like many of Trump’s other nominations. One thing we can all be sure of in these trying times is the strength of Ruth Bader Ginsburg. She will live through Trump and hopefully many other presidents. RBG will never die!

-Publius Admirer